BREIGHNER v. CHESNEY

The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

MEMORANDUM

Presently before the court is a petition for writ of habeas corpus
(Doc. 1) in which petitioner, Darrell Wayne Breighner ("Breighner"),
asserts that the Superior Court of Pennsylvania acted unreasonably in
finding sufficient evidence to support his conviction for arson.
Resolution of this issue requires the court to determine whether recent
amendments to the federal habeas statute, 28 U.S.C. § 2254, mandate
that federal courts accord a "presumption of correctness" to factual
findings of a state court when the state court has previously considered
and rejected the petitioner's claims for relief. For the reasons that
follow, the court holds that the presumption of correctness does not
apply in such cases.

With respect to the merits, petitioner's assertions of constitutional
error by the state court are unavailing. Consequently, the court will
deny petitioner his requested relief.
Page 2

I. Statement of Facts

At approximately 7:00 p.m. on January 2, 1999, a fire broke out in the
rental offices of Briarcrest Garden, a large apartment complex in
Hershey, Pennsylvania. The fire spread quickly and flames were soon
visible outside of the building. Residents of the complex notified
emergency personnel, who were able to contain the fire. (Doc. 8, Exs. A
at 36, 82-85, B at 5-11). Following their examination of the scene,
officials determined that the fire had been set intentionally and fueled
through use of an accelerant. They also found that a burglary of funds
held in the rental offices had occurred prior to the fire. (Doc. 8, Ex. C
at 50-74). The incident occurred near the first of the month, when
residents typically submitted their rental payments, and the outer door
showed no signs of forced entry. Consequently, officials postulated that
the offender was likely someone with access to the rental offices and
knowledge of office policies. (Doc. 8, Ex. C at 50-74).

After further investigation, state authorities brought charges of arson
and burglary against Breighner, a maintenance worker at the apartment
complex. Breighner had access to the rental offices as well as use and
possession of a red maintenance truck owned by Briarcrest Garden. (Doc.
8, Ex. H). According to the prosecution, Breighner drove to the rental
offices in the red truck, left it running while he went inside to commit
the burglary and set the fire, and then drove quickly away from the
rental offices to his own apartment in the same complex.

Several witnesses placed Breighner at the scene of the fire through
circumstantial evidence. Marissa Mueller ("Mueller"), a resident of the
complex,
Page 3
saw the red maintenance truck pull up and park in front of the
rental offices "at about" 6:15 p.m., as she was walking to a local video
store. (Doc. 8, Ex. B at 5-11). Upon her return, she saw "the same truck"
quickly pull into another part of the complex, located a significant
distance from the rental offices. Although Mueller estimated that she saw
the truck the second time at "around quarter to 7:00 [p.m.], give or take
five minutes," her estimates of time spent walking and browsing at the
video store suggest that she may have seen the truck closer to 7:00 p.m.,
or even slightly later.*fn1 (Doc. 8, Ex. B at 5-11). When she approached
the rental offices, she noticed smoke coming from the building. Soon
after, firefighters arrived to combat the blaze. (Doc. 8, Ex. B at 5-11).

Another resident, Robert C. Wohlmaker ("Wohlmaker"), testified that he
saw the red maintenance truck parked outside the rental offices on the
night in question. (Doc. 8, Ex. A at 82-85). He noticed that the lights
of the truck were turned on and that the engine was running, but he could
not see anyone inside. As he continued towards his own apartment, he
"heard the engine rev up." (Doc. 8, Ex. A at 82-85). He turned and saw
the red truck "go real fast" down the drive leading out of the complex.
Although he could not estimate when he saw the truck,
Page 4
it was after night had fallen (approximately 5:30 p.m.*fn2) but
before firefighters arrived on the scene, shortly after 7:00 p.m. (Doc.
8, Ex. A at 82-85).

Testimony of other residents confirmed that the fire started at or
shortly after 7:00 p.m. and that the flames were "real high" by 7:15 p.m.
(Doc. 8, Ex. A at 36). Expert testimony established that the arsonist had
used an accelerant available in the rental offices. The prosecution's
expert concluded that the fire was started about ten or fifteen minutes
before it became so intense that people would likely notice and report it
to authorities. (Doc. 8, Ex. A at 81).

Although Breighner did not take the witness stand, a police officer
testified as to his investigative conversations with Breighner. According
to the officer's testimony, Breighner had initially admitted to driving
the red maintenance truck on the day in question. (Doc. 8, Ex. C at
50-74). Breighner had also made several comments about the expenses
associated with his girlfriend's pregnancy and his need for additional
money to meet other child support obligations. (Doc. 8, Ex. C at 50-74).
In a subsequent session, the officer confronted Breighner with statements
of other witnesses placing the red maintenance truck outside the rental
offices before the fire started. After learning of these statements,
Breighner suggested that
Page 5
he had been driving a different, blue truck on the day in question.
When the officer persisted, Breighner "became extremely angry" and would
not explain the change in his version of events. (Doc. 8, Ex. C at
50-74). Other witnesses at trial testified that they had, in fact, seen
Breighner driving the red truck on January 2, 1999. However, none of them
affirmatively placed him in the truck at the time of the fire. (Doc. 8,
Ex. Bat 53).

After several days of trial, the jury returned a verdict of guilty on
the charges of arson and burglary. (Doc. 8, Ex. H). In its opinion in
support of the verdict, the trial court recounted the evidence and
concluded:

[I]t is clear that [the] red maintenance truck was
occupied by the perpetrator of the crime. Only one
person places himself in this red truck at
approximately the same time. There is only one
person who had the opportunity to be in possession
of this red truck at the time the crime occurred.
That person is the defendant.

On appeal to the Superior Court of Pennsylvania, Breighner attempted to
cast doubt on the credibility of several witnesses and argued that "no
direct evidence" linked him to the scene of the fire. (Doc. 8, Ex. I).
Although the superior court agreed that the prosecution was based on
circumstantial evidence, it stated that "a conviction for arson may be
based solely on circumstantial evidence." (Doc. 8, Ex. I). Crediting the
testimony of Mueller and Wohlmaker, who "place[d] the red truck that was
assigned to [Breighner] at the scene of the fire," the superior court
held that sufficient evidence existed to permit the jury "to find that
all
Page 6
elements of the crime charged have been proven beyond a reasonable
doubt." (Doc. 8, Ex. I). The court upheld the conviction. The Supreme
Court of Pennsylvania subsequently denied Breighner's petition for
review. (Doc. 8, Ex. M).

On October 10, 2002, Breighner filed the instant habeas petition under
28 U.S.C. § 2254(d). He asserts (1) that "the [s]uperior [c]ourt's
review resulted in a decision that was an unreasonable application of
federal law" and (2) that the decision was "based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding." (Doc. 1). With respect to the first claim,
Breighner argues that the superior court misapplied the "beyond a
reasonable doubt" standard established in Jackson v. Virginia,
443 U.S. 307 (1979), by "adopt[ing] the [C]ommonwealth's
misrepresentation of the record" and by "treat[ing] the argument of
insufficiency of the evidence as a credibility issue wherein the jury was
free to believe or disbelieve the testimony of Wohlmaker and Mueller."
(Doc. 1 ¶¶ 37-45). As to the second, petitioner contends that the
testimony did not support the conclusions that Mueller and Wohlmaker saw
the same red truck, that the red truck was the one used by Breighner, or
that the two witnesses saw it near the time of the fire. (Doc. 1 ¶¶
45-59). Breighner neither requested nor received a new evidentiary
hearing in the federal proceedings.
Page 7

II. Discussion

Amendments to the federal habeas statute enacted as part of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No.
104-132, 110 Stat. 1218, severely restrict a federal court's authority to
grant relief when a state court has previously considered and rejected
the petitioner's claims. See 28 U.S.C. § 2254 (d). Under
the new provisions, a federal court may grant relief to a prisoner held
pursuant to a state court judgment only when the state court's
adjudication either:

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

Id. Only through one of these two avenues may prisoners
successfully relitigate claims presented to and decided by the state
court. Id.

A cursory examination of the two provisions shows that the first is
concerned primarily with considerations of law while the second focuses
on issues of fact. Relief under paragraph (1) is available when the state
court has either misinterpreted the governing federal legal principles or
has misapplied those principles to the facts of the case. Id.
§ 2254(d)(1). In contrast, paragraph (2) permits relief when the
state court decision was "based on an unreasonable" finding of fact,
regardless of the propriety of the legal analysis. Id. §
2254(d)(2).
Page 8

The clarity of these provisions is confounded by
subsection (e)(1):

In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a
determination of a factual issue made by a State
court shall be presumed to be correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.

Id. § 2254(e)(1). This provision attaches a presumption
of correctness to any "determination of a factual issue" made by the
state court. Id. To rebut this presumption, the burden is on
the petitioner to present "clear and convincing evidence" to the
contrary. Id. Because subsection (e)(1) facially places no
limit on its application, the presumption of correctness arguably applies
to the habeas court's review of claims brought under subsections (d)(1)
and (d)(2).

Doing so, however, seems to result in a merger of analyses under the
two subsections, an outcome inconsistent with the independent purpose of
each provision. The effect is evident in cases such as the one
sub judice, in which the petitioner claims, under subsection
(d)(1), a misapplication of the legal "beyond a reasonable doubt"
standard to a factual element of the case and, under subsection (d)(2),
an unreasonable determination of the same fact. Assuming that the
presumption of correctness applies, and the petitioner fails to offer
"clear and convincing evidence" contrary to the state court's finding, it
would seem that the state court's finding could constitute neither a
misapplication of the "beyond a reasonable doubt" standard (since the
fact is deemed correct beyond evidentiary doubt) nor an unreasonable
determination of the fact (since a correct finding
Page 9
cannot be irrational). Whether the petitioner has rebutted the
presumption of correctness of subsection (e)(1) would become the
dispositive inquiry in claims premised under both subsections (d)(1) and
(d)(2). As the statute clearly prescribes two different avenues for
relief, it seems incongruous that they merge as one in certain
situations.

As always, plain meaning serves as the court's touchstone in this
analysis. See Carter v. United States, 530 U.S. 255, 271
(2000). Legislative intent and other extrinsic evidence of statutory
purpose provide a secondary path to proper construction, supplementing a
possibly ambiguous provision, but can never contravene the plain meaning
of the text.*fn4 See Conn. Nat'l Bank v. Germain,
503 U.S. 249, 253-54 (1992). Words and phrases should receive the same
construction throughout the statute and should be interpreted, to the
extent possible, to give full effect to all provisions. See TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001) ("It is `a cardinal principle of
statutory construction' that `a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.'") (quoting Duncan v.
Walker, 533 U.S. 167, 174 (2001)).

A. Subsection (d)(1) of § 2254

Section 2254(d)(1) provides the primary means by which district courts
may oversee the application of federal legal principles by state courts
in the criminal context. This provision permits the district court to
grant an application for writ of habeas corpus in two circumstances: when
the state decision is "contrary to"
Page 11
federal law or when the decision "involve[s] an unreasonable
application" of federal law. 28 U.S.C. § 2254(d)(1). The Supreme
Court has explained the distinction between the two prongs of subsection
(d)(1) as follows:

Under the "contrary to" clause, a federal habeas
court may grant the writ if the state court
arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state
court decides a case differently than this Court
has on a set of materially indistinguishable
facts. Under the "unreasonable application"
clause, a federal habeas court may grant the writ
if the state court identifies the correct
governing legal principle from this Court's
decisions but unreasonably applies that principle
to the facts of the . . . case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Thus, this
provision offers relief when the state court either misstates the
applicable legal standard or misapplies the proper standard. See
id.

1. Interpretation of Subsections (d)(1) and (e)(1)
of § 2254

Despite the lack of an express restriction on the scope of subsection
(e)(1), the structure of § 2254 demonstrates that the presumption of
correctness cannot apply to claims premised on subsection (d)(1). The two
parts of subsection (d) provide alternative avenues for a habeas
petitioner to challenge an improper conviction. See
28 U.S.C. § 2254(d). Paragraph (1) exists to correct misstatements and
misapplications of federal legal precedent, while paragraph (2) serves to
remedy unreasonable findings of fact. See id.;
Williams, 529 U.S. at 412-13: Wiggins v. Smith,
123 S.Ct. 2527, 2539 (2003). Application of subsection (e)(1), with its
focus on factual issues, interposes a factual component onto the legal
analysis of subsection (d)(1), essentially duplicating the protection
already offered by subsection (d)(2)
Page 12
and rendering the latter provision superfluous. Thus, subsection
(e)(1) cannot be construed to apply to claims premised on subsection
(d)(1). See Duncan, 533 U.S. at 174; see also
Williams, 529 U.S. at 412-13 (applying subsection (d)(1) without
mention of factual issues or subsection (e)(1)): Benefiel v.
Davis, No. 03-1968, 2004 WL 178071, at *3 (7th Cir. Jan. 30, 2004)
(suggesting that subsection (e)(1) applies only to habeas claims premised
on subsection (d)(2)).

That the "presumption of correctness" of subsection (e)(1) is
inapplicable does not mean that deference should not be accorded to the
state court findings in claims arising under § 2254(d)(1). To the
contrary, a reasonable reading of subsection (d)(1) requires the habeas
court, in analyzing the state court's application of federal law, simply
to accept as true the underlying facts as stated in the state court
opinion.*fn5 Cf. Steinman, supra, at 1510-23
(discussing benefits of a close focus on state court opinions under
subsection (d)(1)). This interpretation permits the court to conduct the
rigorous legal analysis mandated by the provision and preserves the
distinction between the two paragraphs of subsection (d).

Further, the absolute deference mandated by subsection (d)(1) to the
factual findings of the state court does not preclude the habeas court
from reviewing
Page 13
"mixed questions of law and fact," such as the voluntariness of a
confession or whether a suspect is in "custody." See Thompson v.
Keohane, 516 U.S. 99, 107-16 (1995) (discussing distinctions between
mixed and pure issues of fact); see also Matteo v. Superintendent
S.C.I. Albion, 171 F.3d 877, 891 (3d Cir. 1999). As the Supreme
Court recognized prior to the adoption of the Antiterrorism and Effective
Death Penalty Act, although such issues are nominally labeled "factual,"
their close link to federal statutory and constitutional standards
requires them to be reviewed as legal questions. See Thompson,
516 U.S. at 107-16. For example, while the environmental circumstances of
an interrogation are typically factual issues, the determination of
whether a person is in "custody" is a "mixed question of law and fact,"
subject to a legal analysis. See id. Thus, the recognition that
paragraph (1) requires acceptance of the state court's determinations of
"historical" facts will work no injustice towards either party to the
habeas proceeding. See Wiggins, 123 S.Ct. at 2539;
Thompson, 516 U.S. at 107-16; see also U.S. CONST,
art. IX, § 9, cl. 2.

Accordingly, the court holds that, although the presumption of
correctness of subsection (e)(1) does not apply, subsection (d)(1)
requires federal habeas courts to accept as true the state court's
findings of issues of fact. In claims premised on this subsection,
federal courts should review the state court's legal analysis without
additional consideration of whether its underlying determinations of fact
may be erroneous or unreasonable.
Page 14

2. Application of 3 2254(d)(1)

To determine whether the state court's application of a federal legal
standard was "objectively unreasonable," the habeas court's focus is not
on the conclusions reached by the state court, but on the scope of the
state court's review and the reasoning employed. Williams, 529
U.S. at 409; Matteo, 171 F.3d at 879, cited with approval
in Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000): Hurtado v.
Tucker, 245 F.3d 7, 16 (1st Cir. 2001). A decision may be
deemed unreasonable if it either fails to consider all of the factors
relevant to the issue or evinces an analytical error in its conclusions.
See id. However, the federal court may not grant relief under
subsection (d)(1) merely because it disagrees with the state court's
application of the rule or would find a constitutional violation on the
same facts.*fn6 See Williams, 529 U.S. at 408-09.

The constitutional standard alleged to have been unreasonably applied
in this case was announced by the Supreme Court in Jackson v.
Virginia, 443 U.S. 307 (1979):
Page 15

[T]he due process guaranteed by the Fourteenth
Amendment [mandates] that no person shall be made
to suffer the onus of a criminal conviction except
upon sufficient proof  defined as evidence
necessary to convince a trier of fact beyond a
reasonable doubt of the existence of every element
of the offense.

Id. at 316. Under this rule, a criminal conviction is
constitutionally valid only if, "viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt." Id. at 319. Although direct evidence may be more
probative of a fact, circumstantial evidence alone may suffice for a
finding of guilt beyond a reasonable doubt. Id. at 324-25:
see also Fed. Power Comm'n v. Fla. Power & Light Co.,
404 U.S. 453, 469 & n.21 (1972) ("[E]ven in criminal cases, guilt beyond
a reasonable doubt often can be established by circumstantial evidence.")
(quoting Ind. & Midi. Elec. Co. v. Fed. Power Comm'n.,
365 F.2d 180, 184 (7th Cir. 1966)).

Contrary to Breighner's argument, a review of the state court's opinion
in this case reveals adherence to the constitutional test enunciated in
Jackson and a proper review of the relevant facts under that
standard. The superior court recited nearly verbatim the
Jackson standard quoted above. (Doc. 8, Ex. I at 4). And it
accurately recounted the evidence presented to the jury. Noting that
Breighner had offered conflicting accounts of his whereabouts on the day
in question and had unique access to both the truck and rental offices,
the court held that the jury could rationally find Breighner guilty of
arson and burglary. The court reasoned that the testimony of Mueller and
Wohlmaker established that the red maintenance truck was parked outside
the rental offices just before the fire started
Page 16
and that it sped away from the scene after the fire had been set.
Other evidence, including Breighner's own admission, placed him in the
truck on the day of the fire. Therefore, the jury could rationally infer
that Breighner committed the robbery and started the fire.

With this review of the state court's analysis, the court cannot say
either that the state court decision resulted in a constitutional
violation or that the opinion represented an "objectively unreasonable"
application of the Jackson standard. See Williams,
529 U.S. at 408-09; Hurtado, 245 F.3d at 16. The state court
reviewed the relevant facts and reasonably applied the governing federal
standard. Nothing more is required under § 2254(d)(1). See
Williams, 529 U.S. at 408-09; Hurtado, 245 F.3d at 16.

B. Subsection (d)(2) of § 2254

Unlike its counterpart, paragraph (2) of § 2254(d) allows federal
courts to review factual determinations of state courts to ensure that
all convictions are based on constitutionally sufficient evidence.
See 28 U.S.C. § 2254(d)(2). Subsection (d)(2) permits
relief when the state court "decision . . . was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." Id. This provision essentially
requires the district court to step into the shoes of an appellate
tribunal, examining the record below to ascertain whether sufficient
evidence existed to support the findings of fact material to the
conviction. See id.; see also id. § 2254(f) (providing for
production of the record before the state court). To warrant relief under
subsection (d)(2), the
Page 17
petitioner must show (1) that an "unreasonable determination" of a
factual issue was made and (2) that the state court decision was "based
on" this improper finding. See id. § 2254(d)(2): see
also Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 786 (11th
Cir. 2003) (stating that relief is not warranted when, even in light of
factual error, result of proceeding would have been the same); cf.
Ashe v. Swenson, 397 U.S. 436, 444 (1970) (examining "essential to
the prior judgment" prong of issue preclusion analysis).

1. Interpretation of Subsections (d)(2) and (e)(1)
of § 2254

Despite their common focus on factual issues, subsections (d)(2) and
(e)(1) each establish a burden of production that is independent, if
not mutually exclusive, from the other. Subsection (d)(2) limits
admissible evidence to the state court record and places the
initial burden of producing that record on the petitioner.
28 U.S.C. § 2254(d)(2), (f); see also Price v. Vincent,
123 S.Ct. 1848, 1853 (2003) (stating that burden of persuasion always lies on
habeas petitioner). If applied to subsection (d)(2) claims, subsection
(e)(1) would impose an additional, nugatory burden on the petitioner to
produce supplemental evidence of a "clear and convincing" character.
See 28 U.S.C. § 2254(e)fl): see also id. §
2254(d)(2) (restricting court's review to "evidence presented in the
State court proceeding"); FED. R. EviD. 402 (excluding evidence not
relevant to claim). Thus, reading subsection (e)(1) to apply to claims
arising under subsection (d)(2) renders the former superfluous.
Page 18

More fundamentally, however, applying subsections (d)(2) and (e)(1)
in the same case risks establishing an irrebuttable presumption against
the petitioner. See Vlandis v. Kline, 412 U.S. 441, 446 (1973)
("Statutes creating permanent irrebuttable presumptions have long been
disfavored under the Due Process Clauses of the Fifth and Fourteenth
Amendments."). The phrase "clear and convincing evidence" generally
connotes affirmative evidence in support of the proponent's position.
See, e.g., Cruzan ex rel. Cruzan v. Dir., Mo. Dep't of Health,
497 U.S. 261, 285 n.ll (1990). The mere absence of proof for the opposing
contention is generally insufficient to meet this high burden; rather,
the party must present evidence showing that the contrary argument is
wrong. See id.; Wiggins, 123 S.Ct. at 2539. In habeas cases
governed by subsection (d)(2), however, the court's review is restricted
to the state record of proceedings, and the petitioner is precluded from
offering additional evidence to rebut the state court's findings.

Thus, a court attempting to apply the presumption of correctness to
claims premised on subsection (d)(2) is confronted with a quandary. If
the record is devoid of evidence in support of the fact, the state
court's factual finding would seem to be "unreasonable" under subsection
(d)(2). Yet, the same fact is accorded a presumption of correctness under
subsection (e)(1). The court must decide between two equally unappealing
alternatives: grant relief, ignoring subsection (e)(1), or deny relief,
ignoring subsection (d)(2). Application of both subsections not only
renders one superfluous, it places them in direct conflict. Therefore,
subsections (d)(2) and (e)(1) simply cannot apply to the same case;
they are mutually exclusive.
Page 19

Separating the standards finds additional support in other provisions
of § 2254. Subsection (f), which applies to cases brought under
subsection (d)(2),*fn7 places the initial burden on the petitioner to
produce the state court record. However, if the petitioner is unable to
do so (due to indigency or other factors), subsection (f) shifts this
burden to "the State." 28 U.S.C. § 2254(f). "If the State cannot
provide . . . the record, then the court shall determine under the
existing facts and circumstances what weight shall be given to the State
court's factual determination." Id. In other words, if the
state fails to meet this burden, subsection (f) permits the court to
accord no weight to the state court's factual finding even though the
petitioner has not produced any evidence in opposition to it.
See id. This contradicts subsection (e)(1), which, if
applicable, would require the court to presume the state court's finding
correct in the absence of contrary evidence from the petitioner. See
id. 5 2254(e)(1).

Interpreting the subsections as mutually exclusive also flows from a
natural reading of the two provisions in the context of the statute.
Subsection (d) applies when the state court has already adjudicated the
claims at issue, meaning a federal evidentiary hearing is generally
unnecessary. See id. § 2254(d). In contrast, subsection (e)
deals primarily with situations in which a new evidentiary hearing is
warranted, permitting the parties to present evidence outside the state
court
Page 20
record. See id. § 2254(e)(2). In these
circumstances, it is reasonable to attach a presumption of correctness to
the state court findings, based on the state court record, and to require
the petitioner to produce affirmative evidence to the contrary of those
findings. Only by separating the burdens imposed under subsections (d)
(2) and (e)(1) may courts give full effect to both provisions.*fn8

This construction also tracks the allocation of burdens established in
the pre-amendment version of § 2254.*fn9 Subsection (d)(8) of the
previous version of the statute encompassed two parts. The first part
permitted the court to overturn a factual finding if it was not "fairly
supported" by the record of the state court proceedings.
28 U.S.C. § 2254(d)(8) (1995). Like subsection (d)(2) of the
current statute, this provision did not speak of a "clear and
convincing" burden on the petitioner, but required only that the
petitioner produce the state court record.*fn10 See id. In contrast,
the second part of subsection (d)(8) of the pre-amendment
Page 21
statute, like current subsection (e)(1), addressed primarily new
evidentiary hearings and placed an affirmative burden on the petitioner
to produce "convincing" evidence in support of his or her position.
See id. The close similarity between the previous version and
the current statute suggests that no change in the allocation of burdens
was intended. Lorillard v. Pons, 434 U.S. 575, 581 (1978)
("[W]here . . . Congress adopts a new law incorporating sections of a
prior law, Congress normally can be presumed to have had knowledge of
the . . . incorporated law, at least insofar as it affects the new
statute."). Thus, as in the previous version, the requirement to produce
"clear and convincing evidence" should not apply to claims brought under
subsection (d)(2).

For all of these reasons, the court will interpret subsection (e)(1) as
inapplicable to proceedings under subsection (d)(2). The court
acknowledges, however, that other courts and commentators have reached
different conclusions. Several courts, primarily in the Fifth Circuit,
have read the provisions together to form a single standard, requiring
the petitioner to show by clear and convincing evidence that the state
court acted unreasonably in reaching its decision. See Miller-El v.
Johnson, 261 F.3d 445, 449-52 (5th Cir. 2001). rev'd sub nom.
Miller-El v. Cockrell, 537 U.S. 322 (2003). The Supreme Court
recently rejected this interpretation, holding that the Fifth Circuit's
approach improperly "merges the independent requirements of [§]
2254(d)(2) and (e)(1)." Cockrell, 537 U.S. at 340-41. However,
the Court did not rule on whether the standard of subsection (e)(1)
could yet apply as a separate standard to claims brought under subsection
(d)(2): that is,
Page 22
whether the petitioner should be required to overcome the
presumption of correctness to prevail in claims under subsection
(d)(2).*fn11 See id. at 359 (Thomas, J., dissenting) (" [T]he
Court . . . does not actually purport to interpret the text of §
2254(e)(1).").

Professors Randy Hertz and James S. Liebman propose, based on
comparisons between the pre- and post-amendment versions of the statute,
that subsections (d)(2) and (e)(1) provide alternative means for
granting habeas relief with respect to claims that were previously
adjudicated by the state court. HERTZ & LIEBMAN, supra,
§ 20.2c. Under this interpretation, subsection (d)(2) permits relief
if a finding was either procedurally or substantively unreasonable,
whereas subsection (e)(1) offers relief if the petitioner can prove that
the finding is otherwise "clearly erroneous"  even if the factual
determination "is not unreasonable" under subsection (d)(2).
Id. § 20.2c, at 830-31 (internal quotations omitted):
see also Leka v. Portuondo, 76 F. Supp.2d 258, 276-77
(E.D.N.Y. 1999) (applying without adopting
Page 23
standard), rev'd on other grounds, 257 F.3d 89 (2d Cir.
2001); LAFAVEET AL., supra, § 28.7(c).

While the previous version of § 2254 may support this construction,
the current version clearly does not. The concept of two separate sources
of habeas relief conflicts directly with subsection (d) of the amended
version of the statute, which states that" [a]n application for a writ of
habeas corpus . . . shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings
unless" either paragraph (1) or (2) is satisfied. See
28 U.S.C. § 2254(d) (emphasis added). Any interpretation that permits
the court to grant relief solely on the basis of subsection (e)(1)
contravenes this restrictive language.

Finally, some commentators suggest that subsection (e)(1) applies only
to the court's review of individual, "basic" factual determinations while
subsection (d)(2) applies "to the review of the entire factual basis on
which the state court decision rested." Rewriting the Great Writ,
supra, at 1874: cf. Sanna v. Dipaolo, 265 F.3d 1, 7 (1st
Cir. 2001) (stating that subsection (e)(1) applies to "basic, primary, or
historical facts") (quoting Bryson v. Ward, 187 F.3d 1193, 1211
(10th Cir. 1999)). This approach interprets the phrase "determination of
a factual issue" in subsection (e)(1) as being more limited in
applicability than the phrase "determination of the facts" in subsection
(d)(2). The former permits consideration only of individual factual
determinations, primarily "historical" facts forming the narrative of the
underlying
Page 24
events; the latter permits review of the "ultimate" factual
conclusions of the court.*fn12 See Rewriting the Great Writ,
supra, at 1874.

This interpretation cuts too fine a distinction between the language of
subsections (d)(2) and (e)(1). A paramount canon of statutory
construction is that words and phrases should be accorded the same
meaning throughout the same section, and generally across the whole act.
E.g., Owasso Indep. Sch. Dist. No. 1-011 v. Falvo,
534 U.S. 426, 434 (2002). The only relevant variation between the
phrases quoted above is the replacement of "the facts" with "a factual
issue." At the risk of cliche, identifying the contrast between these
terms is noting a distinction without a difference. A "determination of
facts" is a resolution of factual issues, and a "determination of a
factual issue" is a resolution of a fact. No principled distinction may
be made between the two phrases, and they should not be imbued with
different meanings.

The only theoretically sound interpretation is that subsection (e)(1)
does not apply to claims under subsection (d)(2). This construction
satisfies the Supreme Court's admonition against "merg[ing]" the
requirements of the two provisions and permits courts to give full effect
to both subsections. See Cockrell, 537 U.S. at 340-41. The
federal habeas court's analysis under this subsection is limited to the
Page 25
record available to the state trial court  and reproduced in
federal proceedings by the petitioner or "the State"  and
encompasses two questions: (1) whether a factual determination of the
state court was "unreasonable" in light of the state record, and (2)
whether the state court's decision was "based" on that unreasonable
determination. See 28 U.S.C. § 2254(d)(2), (f). As this
approach comports with both the text and purpose of the statute, the
court will adopt it here.

2. Application of § 2254(d)(2)

Like the "unreasonable application" prong of paragraph (1), a factual
determination should be adjudged "unreasonable" under paragraph (2) only
if the court finds that a rational jurist could not reach the same
finding on the basis of the evidence in the record.
28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp.2d 278, 296 (E.D.
Pa. 2003): see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th
Cir. 2000); cf. Jackson, 443 U.S. at 316. Mere disagreement
with an inferential leap or credibility judgment of the state court is
insufficient to permit relief. Porter, 276 F. Supp.2d at 296;
see also Williams, 529 U.S. at 408-09; Hurtado, 245
F.3d at 16. Only when the finding lacks evidentiary support in the state
court record or is plainly controverted by evidence therein should the
federal habeas court overturn a state court's factual determination.
Porter, 276 F. Supp.2d at 296; see also Williams,
529 U.S. at 408-09.

Based upon the evidentiary record, the court cannot say that the
superior court erred in finding that Mueller and Wohlmaker saw
Breighner's red maintenance truck at the scene of the fire. Both
witnesses testified unequivocally
Page 26
that they saw a red maintenance truck, which they identified as the
one used by Breighner, parked outside the rental offices. Although
Wohlmaker could not provide an estimate of the time at which he saw the
truck, his testimony established that it was sometime between 5:30 p.m.
and shortly after 7:00 p.m., when the fire erupted. Considered with
Mueller's estimations of the time in which she was in the area 
from 6:15 p.m. to about 7:15 p.m.  it is reasonable to conclude
that both people saw the same truck in the same area around the time the
fire started. Conflicting testimony offered by the two witnesses as to
the position of the parked truck does not contravene the ultimate
conclusion that Breighner's red truck was parked outside the rental
offices at this time. The state court could rationally discount opposing
evidence offered by Breighner as to his whereabouts, particularly in
light of his contradictory accounts, and find the testimony of the two
witnesses credible, as the jury had already done. Because the state
court's determination was not unreasonable in light of the evidence
presented, habeas relief is unavailable under § 2254(d)(2).*fn13

III. Conclusion

Although the presumption of correctness of subsection (e)(1) does not
apply to claims arising under either subsection (d)(1) or (d)(2) of §
2254, the habeas statute mandates a highly deferential posture by federal
courts reviewing claims
Page 27
previously adjudicated by state courts. Contrary to petitioner's
contentions, the state court's decision in this case was reasonable both
in its application of federal law and in its determination of factual
issues. Thus, the court must deny the petition for writ of habeas corpus
in its entirety. For the reasons discussed above, the court also finds
that petitioner has not "made a substantial showing of the denial of a
constitutional right," and will refuse to issue a certificate of
appealability.*fn14

An appropriate order will issue.

ORDER

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.